Employees’ uses of Facebook and Twitter have provided the National Labor Relations Board (NLRB) with an expanded area of enforcement. The NLRB recently issued a guidance memorandum on employee use of social media and their protections under the National Labor Relations Act (NLRA). While not containing decisions by the Board, the memorandum provides insight into how the NLRB would handle unfair labor practice charges involving Facebook or Twitter. The NLRB’s Office of the General Counsel’s report identifies fourteen cases investigated within the past year involving social media use in the labor and employment setting. The report provides guidance as to how the Office of the General Counsel views the issues presented by social media.
The key consideration when analyzing an employee’s use of Facebook or Twitter is whether it constitutes protected concerted activity. Section 7 of the NLRA protects employees’ right to communicate with one another regarding the terms and conditions of their employment. “Concerted activity” is any activity by individual employees who are united in pursuit of a common goal. The action must be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself. An employee’s conduct is not “concerted” unless it is engaged in with or on authority of other employees. Meyers Industries, 281 NLRB 882 (1986).
If the communication qualifies as protected concerted activity, an employee cannot be legally discharged or disciplined for the activity. The General Counsel’s memorandum provides guidance that social media usage directed to fellow co-workers or developing from prior discussions about terms and conditions of employment among co-workers is more likely to constitute protected concerted activity. In comparison, when an employee is merely complaining about work conditions specific to that employee and not directed to co-workers or intended to induce group activity, it is less likely to constitute protected concerted activity.
Traditional with NLRB standards for print media, employee comments that are “maliciously false” and offensive or inappropriate comments about an employer’s clients are not protected under the NLRA.
Whether an employer’s social media policy or any discipline from social media use violates the National Labor Relations Act are fact specific issues requiring case by case analysis requiring attorney intervention. This continues to be a developing area of technology and law requiring that your attorney understand potential employee use of varying types of social media and the ever developing case law. Knowing you have the appropriate employment attorney to advise you through your decision making process and investigation is key. As always, best practices suggest you consult with counsel early prior to making a decision to terminate than contacting the attorney after you fire an employee.
By: Justin A. Morocco